Archive for November, 2008

Marco Chapman was convicted in the Boone Circuit Court for murders of two children in Gallatin County. He requested the death penalty. He has fired his public defenders and had not taken a Federal appeal.

Several competence evaluations have been conducted and all found him competent.

FRANKFORT, Ky.—“This morning, I met with several church leaders and mental health representatives regarding the capital punishment case of Marco Allen Chapman. I had previously met with the Catholic bishops, who have corresponded with me on this issue. I greatly appreciate their perspective on the issue of clemency and their sincere opposition to capital punishment.

However, I believe that capital punishment is appropriate in the case of particularly heinous crimes, absent some strong extenuating circumstances. I have reviewed the facts of this case in detail and have given much prayerful thought to it. I do not find any such strong extenuating circumstances in this case.

Mr. Chapman has been found guilty of a vicious and almost indescribable crime. There is absolutely no dispute about his guilt and Mr. Chapman has been found competent in four different proceedings. Therefore, absent any further legal impediments which might arise, the state will proceed with carrying out the sentence of the court

ANN ARBOR, Michigan (Blue MauMau) – The Sixth Circuit Court handed down its amended opinion Friday in the ongoing litigation between the Coffee Beanery and franchisees WW, LLC, under Richard Welshans and Deborah Williams. It states, “. . . we REVERSE the judgment of the district court and VACATE the Arbitrator’s award.” Again it declares, “. . . WW need not resort to arbitration to vindicate its statutory rights but may instead seek appropriate relief in a court of law.” The ruling once again falls back on the one issue: the fact that Coffee Beanery failed to disclose Kevin Shaw’s felony conviction of grand larceny, stating that the Arbitrator showed a manifest disregard of law when she issued her award.

In their analysis, the judges stated, “When courts are called on to review an arbitrator’s award the review is narrow; it is one of the narrowest standards of judicial review in all of American jurisprudence.” Section 10 of the FAA sets forth the grounds: 1) where the award was procured by corruption, fraud, or undue means; 2) where an arbitrator evidenced partiality or corruption; 3) where the arbitrators were guilty of misconduct; and 4) where the arbitrators exceeded their power. Although the court’s ability to vacate is almost exclusively limited to those grounds, it may also vacate an award found to be in manifest disregard of the law, the one issue it latched to.

After listing the other cases in each of the Circuit Courts, First through Ten, the judges proceeded to say that in light of the Supreme Court’s hesitation to reject the “manifest disregard” doctrine in all circumstances, they believe it would be imprudent to cease employing such a universally recognized principle. They state, “Accordingly, this Court [Sixth Circuit] will follow its well-established precedent here and continue to employ the “manifest disregard” standard.”

In an interview with Deborah Williams, she stated that she was glad the three-judge panel named all their claims in the opinion. She said, “The panel named everything out. They said Coffee Beanery didn’t give us a registered UFOC (Uniform Franchise Offering Circular), they gave us inappropriate earnings claims, and they didn’t disclose everything they should have regarding the cafe concept.” The franchisees alleged they were induced into buying the costly cafe model when they originally planned to purchase the coffee shop concept. Williams added, “The judges came right out and said the Coffee Beanery defendants were liable [on the manifest disregard issue] and we don’t have to re-arbitrate. We can now go to court.”

Williams also feels the Sixth Circuit was careful in naming each of the officers of the company, headed by the well-known Shaw family—CEO JoAnne, named in 2000 as IFA’s first woman chair; husband Chairman Julius; and sons Vice Presidents Kurt and Kevin—as separate from Coffee Beanery LLC so that there is individual liability. According to a company memo, two of the named officers were terminated last month, one being CFO Ken Coxen. Williams said she was told that two other vice presidents, Walter Pilon and Owen Stearn, have recently resigned

Recent Legal Action after First Decision of Sixth Circuit Court

On August 29, the attorney for Coffee Beanery, Karl V. Fink of Pear Sperling Eggan & Daniels, filed an en banc rehearing petition, a council in which all judges of the court hear the case rather than just the panel of judges. His case for rehearing cites the Hall Street v. Mattel case where the Supreme Court ruled that “manifest disregard of the law” is not ground for vacating an arbitration award set forth in the Federal Arbitration Act (FAA). Fink states the panel’s decision directly conflicts with Hall Street. He continues, “The panel’s decision in this case is unique because it is the only decision in which a Sixth Circuit Court of Appeals panel has ever vacated an arbitration award of the “manifest disregard of the law.” He declares that it conflicts with other the Sixth Circuit case precedents, which he names.

In his en banc petition, Fink also explains how the arbitrator could not have made the statement that Kevin Shaw has a grand larceny conviction as it is not the type of felony offense subject to disclosure requirements, and it did not cause damage to the franchisees. As a footnote he further explains that the conviction happened twenty years ago and was a misdemeanor.

His brief also states that the panel of judges exceeded its authority under FAA by vacating the award and setting aside the arbitration agreement solely on a finding that the franchise agreement was fraudulently induced. According to Fink, the franchisees never asserted that the arbitration agreement itself was fraudulently induced. “The panel did not consider the agreement to arbitrate independently . . .when it ruled that the alleged fraudulent inducement of the franchise agreement resulted in the parties not being bound by the arbitration agreement,” he concludes.

In a telephone conversation with Karl Fink, he said they did not wish to make a comment on the amended opinion at this time.

In response to Fink’s brief, Harry M. Rifkin of Cohan, West, Rifkin & Cohen, attorney for franchisee WW, LLC and Welshans, stated that Coffee Beanery and its officers have not met their heavy burden in seeking further review of the August 18 court opinion. He tells the court that if his clients had known of Kevin Shaw’s felony conviction and the other omitted information, the undisputed testimony is that the Welshans would not have bought the franchise, entered into a lease for their store, and they would not have lost in excess of a million dollars in operating the franchise. “For The Coffee Beanery to now claim that there is any question as to whether the Maryland law required the disclosure is highly disingenuous,” he said. He further stated that at the oral argument, Coffee Beanery counsel Karl Fink conceded that Kevin Shaw’s felony conviction, which he now seeks for the first time in this case to deny, was required to be disclosed under Maryland law.

Rifkin argues that this case does not implicate the Hall decision, stating that it involves choice-of-law clause inserted by Coffee Beanery in an amendment to its standard franchise agreement that selects Maryland’s Franchise and Disclosure Law rather than the Federal Arbitration Act. In an interview Rifkin said, “If you read the Hall Street case it only raises questions. It doesn’t reject it.”

Rifkin said the latest decision is further vindication of his client’s claims of fraud and misrepresentation. But he goes farther saying, “I think it is a victory for the judicial system and a warning to arbitrators that they don’t just have carte blanche to do whatever they want regardless of what the law and facts are.” He said the decision helps to restore some due process rights that he feels have been lost with the increase in arbitration and the overwhelming rate of rejection of appeals of arbitration cases. “This restores a little bit of balance and proves that if an arbitrator acts totally in disregard of the law, that arbitrator is not above the law,” he said.

Arbitration Contracts on Same Footing as Any Contract–But Not More So

Williams said she clearly remembers Paul Bland, Jr., Staff Attorney for Public Justice, repeatedly stressing to them that arbitration clauses are contracts and are on the same footing as any contract, but not more so. He also reminded them that Coffee Beanery wrote the contract to arbitrate, that when they contracted for the Maryland Franchise Act they expanded judicial review. Rifkin concurred, saying, “When The Coffee Beanery amended its franchise agreement to the court to determine claims under the Maryland Franchise Act, that amendment was certainly enforceable. That’s the basis for allowing these claims to be heard in court.”

As a result of this decision, Williams hopes other franchisees will stand up for their rights and fight. She feels it’s important for them to know that the Federal Arbitration Act is not a wherewithal where franchisees and their attorneys have to just lay down thinking they are never going to get out. Arbitration is always an uphill battle, an expensive battle, but it can be won under the right circumstances. She said, “The Supreme Courts has issued it in more than one ruling that it does need to be put on equal footing with other contracts, not on a higher or different level.

Road to Recovery

In closing, Rifkin said “This has been an interesting journey, seeing the best and the worst of our judicial system. The wheels of justice turn slowly, but at least they are turning and we are moving forward.” He continued, “A decision like this restores your faith, seeing that the judges in the system haven’t abandoned citizens when it comes to arbitration.”

But he emphasizes that this is just the first step, that now they need to work toward recovery. “My clients have not been compensated yet. I’m looking forward to recovering some of the money they lost, which amounts to over a million dollars. Although nothing will make up for the loss of five years of their lives, it will certainly make it easier for them going forward in rebuilding their lives.”

Michael LeRoy, a professor of law and of labor and employment relations at the Univ. of Illinois, says Democratic Party control in Washington could restore lawsuits as an option for workers and consumers now forced to settle disputes through mandatory arbitration that gives employers and businesses an unfair edge

CHAMPAIGN, Ill. — Democratic Party control in Washington could restore lawsuits as an option for workers and consumers now forced to settle disputes through mandatory arbitration that gives employers and businesses an unfair edge, a University of Illinois labor law expert says.

Michael LeRoy predicts a bill sponsored by Democrats that would bar companies from imposing arbitration will likely be approved next year when Democrats take over the White House and add to their majorities in Congress.

The measure, introduced last year but stalled by the prospect of a Bush administration veto, would halt a shift that has grown since a 1991 U.S. Supreme Court ruling allowing firms to require arbitration rather than courts to resolve disputes, he said.

“The bottom line is you shouldn’t be forced into arbitration,” LeRoy said. “It doesn’t seem like a hallmark of a democratic society to say that as a condition of an important economic relationship such as employment that you must forego a constitutional right.”

LeRoy says his research shows that arbitration as the only outlet to settle disputes is flawed, giving companies an unfair advantage in cases that can range from workplace sexual harassment or unjust dismissal claims to customers who challenge credit-card bills.

One study found that state appellate courts confirmed 86.7 percent of employer wins in job-related disputes, compared with just 56.4 percent of cases in which arbitrators sided with employees.

The lopsided results suggest a double standard, LeRoy said, likely stemming from corporate-friendly state laws that have led to “snowballing futility” for the estimated 20 percent of U.S. workers whose only legal resource is arbitration.

Another study found that federal courts overturned only 4 percent of arbitrator rulings in employment discrimination cases, compared with 13 percent of similar cases decided by courts rather than arbitrators.

“I doubt that judges are three times more error prone than private arbitrators,” said LeRoy, a professor of law and labor and employment relations. “The problem is that the standard for reviewing mistakes by judges and juries is much broader than the test for reviewing an arbitrator’s ruling.”

He says his research also revealed other areas where arbitration favors companies, such as contracts that ban punitive damages or lawyers’ fees when employees or consumers prevail.

“Attorney fees can be in the hundreds of thousands of dollars,” LeRoy said. “I can point to a case from my research where a woman won $90,000 and had to pay more than that for an attorney. So what did she get by challenging the action?”

Arbitration would remain an option to settle disputes, but would be voluntary rather than mandatory under the proposed Arbitration Fairness Act, sponsored by Sen. Russ Feingold, D-Wis., and Rep. Hank Johnson, D-Ga.

Workers and consumers could opt for court or arbitration, deciding based on the facts of the dispute at hand rather than accepting a blanket contract when they hire in or sign up for a credit card, bank account or another service, LeRoy said.

Arbitration might be the best option for some disputes, such as low-stakes claims or a potentially embarrassing sexual harassment case that both sides prefer to shield from the public eye, he said. In other cases, he said, courts are a better outlet, offering potentially heftier awards and a chance for a hearing by jury instead of a lone arbitrator.

“The bill that’s pending is not anti-arbitration,” LeRoy said. “What’s happening with mandatory arbitration is it’s become an indiscriminate use of an otherwise very good resolution process.”

The bill generally has been backed by Democrats and opposed by Republicans, who fear lawsuits that could make U.S. corporations less competitive in a global economy.

But he says the measure could muster more bipartisan support in the wake of a financial meltdown that has put the nation’s credit industry under increased scrutiny.

“The idea that a credit-card issuer can mandate its own private justice system that is shielded from public view is going to be difficult for any politician to defend these days,” LeRoy said. “It would be hard to say, ‘Let’s keep that system alive,’ especially when the government is using taxpayer money to bail out financial institutions that are issuing the credit cards.”

A challenge to a campaign finance law from a conservative group that made a movie critical of Sen. Hillary Rodham Clinton in connection with her presidential campaign. Citizens United says the movie and ads promoting it are not campaign-related and do not have to comply with campaign finance rules. A federal court ruled otherwise.

A dispute over the refusal of a West Virginia Supreme Court justice to step aside from a case that involved a company run by a man who spent $3 million in support of the justice’s election.

A question of when prosecutors may retry criminal defendants after a jury votes not guilty on some charges, but fails to reach a verdict on others. The issue arose in federal criminal charges against a former Enron executive.

A criminal case over whether the accidental discharge of a gun during the commission of a crime carries with it at least 10 years in prison, an issue on which federal appeals courts are divided. There is little dispute that a pistol brandished during a 2004 bank robbery in Rome, Ga., went off accidentally. But prosecutors said, and the Atlanta-based 11th U.S. Circuit Court of Appeals agreed, that federal law in such instances calls for a minimum of 10 years in prison.

Another criminal case, this one over drug deals, in which appeals courts have issued differing rulings. The court will decide whether someone who uses his own cell phone to buy small amounts of cocaine for his own use is guilty of a felony. The law in question says that using a phone to facilitate a felony is itself a serious crime. The dispute is over whether the law should apply only to sellers or users as well.

Fourteen years ago, a single mother named Ann Dunham began a long, ultimately unsuccessful battle with cancer – and a simultaneous war with her health insurance provider. Over and over, as Ms Dunham’s son, Barack Obama, recounted during the October 6 presidential debate, company representatives suggested that his mother’s cancer “may have been a pre-existing condition and they don’t have to pay her treatment”.Ann Dunham’s story is hardly unique. Millions of Americans know well that the pain of serious illness is often compounded by endless jousts with insurers arbitrarily withholding coverage of physician-prescribed care. Myriad court records tell the stories of people like Maureen Kurtek, who lost five fingertips and most of her right foot after her husband’s employer switched to an insurer which resisted continuing to cover her lupus treatment. And of construction manager James Lind, who was able to continue working despite his multiple sclerosis, until his insurer abruptly declined to continue paying for the prescription that had kept his MS at bay. And Rhonda Bast, who died after her insurer refused coverage of a bone marrow transplant which could have prevented her cancer from spreading to her brain.Many of these sad stories could and should have been avoided. The fault lies with senior federal officials driven by the same deregulatory fervour responsible for enabling the imprudent lending frenzy behind the current financial crisis. In this case, however, the zealots do not run administrative agencies or departments. They preside at the United States supreme court. Over the past quarter-century, court majorities, led principally by Justice Antonin Scalia, have systematically dismantled the framework of laws designed to prevent benefit providers from breaking their promises to patients like Ann Dunham.The keystone of this protective framework is the Employee Retirement Income Security Act, known by its acronym, Erisa. Congress passed Erisa in 1974 to protect the pensions and employer-provided health plans which millions of Americans rely upon. Yet the supreme court has twisted this law into something quite different. As noted by Senate judiciary chairman, Patrick Leahy, the court’s perversion of Erisa is a prime example of decisions that have turned laws “on their heads, making them protections for big business rather than ordinary citizens.”Erisa sets strict standards to ensure that employers and insurers administering group benefit plans act “solely in the interests of beneficiaries for the exclusive purpose of providing benefits,” not their own bottom-line. But the court has rendered these protections meaningless. In a Catch-22 decision written by Justice Scalia, a 5-4 majority held that, when plan administrators violate their obligations under the law, victims may not recover any monetary compensation for resulting losses they suffer. Adding insult to injury, the court has read Erisa as a warrant for “pre-empting” – ie abolishing – pre-existing state law protections, leaving victims with literally no recourse. Thus, in the words of, the late Justice Byron White, the supreme court has achieved the “perverse anomaly of leaving those Congress set out to protect with less protection than they enjoyed before Erisa was enacted.”When forced to apply the supreme court’s “tangled” Erisa rules, ordinarily circumspect federal judges have often harshly attacked them. Most famously, the late Chief Judge Edward Becker, a Republican named to the third circuit court of appeals by President Reagan, excoriated Justice Scalia and his allies for converting Erisa “into a shield that insulates HMOs from liability for even the most egregious acts of dereliction committed against plan beneficiaries, a state of affairs directly contrary to the intent of Congress.” Judge Becker stressed that the court’s distortion of Erisa creates “strong incentives for HMOs to deny claims in bad faith or otherwise ‘stiff’ participants.” The systemic result, he added, is a “‘race to the bottom’ in which the most profitable HMOs will be those that deny claims most frequently.”A recently discovered insurance company memo (pdf) confirms Judge Becker’s insight. This smoking gun, an internal company directive, instructed claims processors to structure “new and existing policies” so as to ensure that they would be subject to Erisa. Once covered by this federal law originally hailed as a landmark safeguard for beneficiaries, the memo forecast, the company could eliminate over 90% of its payouts to claimants seeking redress for denials of coverage.Immunity for health insurers is just one gift which the supreme court has given to powerful interests that find compliance with the law inconvenient. The most notorious recent example is the 2007 Ledbetter decision, in which the court’s five conservatives held that victims of pay discrimination have only six short months to seek relief – even if they do not learn of the discrimination until years later. But the supreme court has also thwarted Congress’ efforts to protect Americans with disabilities against discrimination (pdf). It has erected unprecedented barriers to patients seeking redress for unlawfully withheld Medicaid benefits, pre-empted state predatory lending (pdf) curbs, and extended lawsuit immunity to the manufacturers of dangerous medical devices. In case after case, the court has achieved de facto repeal of federal guarantees by eliminating citizens’ ability to enforce them in court, and, through pre-emption, secured outright repeal of state law protections.As the new president rolls out new proposals for ensuring health and economic security, he should not ignore the court’s drive to roll back existing safeguards. If he acts fast, he could score some significant early wins, and send a clear signal that the new sheriff in town is serious about justice for ordinary citizens. Early in this Congressional term, it could be possible to legislatively “fix” decisions that distort major laws like Erisa and the Civil Rights Act equal pay guarantees upended in the Ledbetter case. His agency heads can rescind the mass of Bush administration regulations and policies that pre-empt vital state legal protections. His justice department can press the federal courts to faithfully construe laws in line with their original reformist purposes, and stop importing stealth deregulatory designs recently in vogue. Most important for the long-term, the president, together with allies in the Senate, can sensitise new judicial nominees to the priority of robust enforcement of guarantees protecting Americans’ pocket book needs.By targeting courts that coddle corporate law-breakers, President Obama can engineer change that will save millions of Americans from major financial, physical, and emotional travail.Simon Lazarus and Ian Millhiser are attorneys with the National Senior Citizens Law Centre

Transportation Secretary signs order to permit registration, titling of alternative electric vehicles - Governor directs action to allow use of some electric vehicles on certain roads

FRANKFORT, Ky. – An administrative order signed by Kentucky Transportation Secretary Joe Prather allows “alternative electric vehicles” to be registered and titled for the first time in Kentucky.

The order, which is being sent to Kentucky’s 120 county clerks, was prompted by an increase in consumer interest in electric cars and trucks.

Gov. Steve Beshear in August directed the Secretary to develop and implement standards for authorizing the use of certain electric vehicles on Kentucky roadways.

“Under certain prescribed conditions, the use of electric cars can – and should – be an important part of our efforts to offer cost-effective and energy efficient alternatives for our transportation needs,” Gov. Beshear said. “I believe there is a market for these alternative vehicles and I’m excited about the potential.”

Prather’s order applies to alternative electric vehicles that at least meet federal safety standards for motorcycles. Their operation is restricted to roadways with posted speed limits of no more than 45 mph, of which Kentucky has 3,507 miles.

The vehicles cannot be driven across a roadway with a posted speed limit higher than 45 mph except at intersections with stoplights. Operators must have a valid license, are subject to all traffic laws and the same insurance requirements that pertain to motor vehicles.

Golf carts and all-terrain vehicles are specifically excluded from terms of the order.

LawReader received the following DUI story from Hodgenville from a reliable source. We have slightly edited this story to make it more readable but have not changed any of the facts reported. We have invited Vehicle Enforcement in Frankfort to respond.The Vehicle Enforcement Division was transferred to the Justice Cabinet in 2004. Recently they were granted the authority to make DUI stops of automobiles by a court ruling.Kentucky Vehicle Enforcement focuses on safety on the highways of the Commonwealth with the primary emphasis being commercial traffic: vehicle safety, driver safety, and proper authority and compliance for vehicles operating in commerce.

Our DUI Story:“At about 1:20 pm, on his way from work to his little girl’s fourth birthday party, The defendant was stopped at a road block run entirely by Vehicular Enforcement Officers. Vehicular Enforcement Officer said that he smelled alcohol coming from (defendant). (The defendant)… took a PBT test. Blew 0.000.Vehicular Enforcement Officer then said “your eyes are red” and did a HGN. Said he was under influence of marijuana. Vehicular Enforcement Officer Searched Car. Found Nothing but Vehicular Enforcement Officer said “shake” but client cuts LAWN grass for child support money. No charge as to Marihuana outside of DUI. He was charged with No Insurance and No Registration (but it was his girlfriend’s car and he has proof of insurance and registration now)They arrested defendant, handcuffed him, and took him to the Hodgenville Police station where it proceeded to get strange. Vehicular Enforcement Officer took his blood pressure, took his pulse and then two Vehicular Enforcement Officers took him into a bathroom where they turned the lights on and off, covering his eyes alternately, telling him that they are conducting a test on his pupils. They tell him that only a few are certified to do these tests to prove the client had done marijuana within six hours of driving. Strangeness continues. Then, at the station, after the arrest, The Vehicular Enforcement Officer had him do the one leg stand, the walk and turn, the finger to nose. Then they had him urinate. Somewhere in the course of events (defendant) said that he smoked marijuana the day before this occurrence.(The)… Lab report on the urine confirms marijuana consumption.(The defendant overheard the Vehicle Enforcement officers), at the police station talking among themselves, (and he) overheard discussions that included: that the number of arrests at this year’s roadblock were down from last years where they “really tore them up”. They were disappointed. Also, they said that Vehicular Enforcement Division of the Transportation Cabinet was going to be absorbed into Kentucky State Police in the Justice Cabinet.” ***************LawReader has sent this story to Vehicle Enforcement and invited their response. We said:“We have published the following story, and would invite any comment from VE.We are particularly interested in the new test for marihuana consumption where the officer turns the lights on and off and thereby can look at the eyes of the driver and detect recent marihuana usage. Can you tell us the scientific basis for that test?Can you tell us the scientific basis for taking the defendant’s blood pressure?We welcome your response and will publish your story.”

WASHINGTON — The Supreme Court heard arguments on Monday in a case that could have broad implications for how prosecutors present evidence from crime laboratories at trial.

Many states allow reports from crime laboratories to be submitted to juries through written certifications rather than live testimony. That practice is convenient, but it may run afoul of the Sixth Amendment’s “confrontation clause,” which guarantees criminal defendants the right to confront the witnesses against them.

Several justices seemed to struggle to find the dividing line between the kinds of information that must be presented through live testimony and those that are routine, reliable or tangential enough to require only a written certification. The justices also indicated that they were aware of recent scandals at major crime laboratories involving the flawed analysis of blood, hair, ballistics and other evidence.

Justice Stephen G. Breyer cited a supporting brief filed by the National Innocence Network in the case, Melendez-Diaz v. Massachusetts, No. 07-591. The brief, Justice Breyer said, “is filled with horror stories of how police labs or other labs have really been way off base and moreover really wrong.”

“They lost the results,” Justice Breyer said of the laboratories. “They got it all wrong.”

The case arose from the conviction of Luis E. Melendez-Diaz on cocaine trafficking charges in Massachusetts. Part of the evidence against him was a laboratory report stating that bags of white powder said to have belonged to him contained cocaine. Prosecutors submitted the report with only an analyst’s certificate.

Martha Coakley, the attorney general of Massachusetts, argued that requiring live testimony from laboratory analysts “would be an undue burden with very little benefit to the defendant.”

Ms. Coakley added that the results of analysis conducted by machines should not be subject to the confrontation clause. The tests, she said, produce “100 percent accuracy by and large.”

But she conceded that there was a human element in the process, as the results produced by machines must be interpreted. “A chemist, if properly trained,” she said, “can say by the separation of the chemicals that these three or four or whatever the elements are equal cocaine.”

Some justices suggested that chemical analysis was quite reliable and might be distinguished from other laboratory work.

“Now, if there are new tests, complex DNA tests and so forth, I suppose there is a lot to ask about,” said Justice Anthony M. Kennedy. “Standard blood alcohol, not much to ask about.”

Jeffrey L. Fisher, representing Mr. Melendez-Diaz, disputed that distinction on practical grounds, saying that defendants might want to know quite a bit about the chemical analysis of substances determined to be illegal drugs. “What test was performed?” Mr. Fisher asked, giving examples. “What’s the error rate on that test? How do your protocols work? What are your experience and credentials in analyzing those?”

Mr. Fisher also objected to the distinction as a matter of principle. If the confrontation clause applied, he said, the reliability of the evidence would not matter and the defendant could put the government to the burden of proving its case through live testimony.

Justice Kennedy said California used that approach and asked whether that state had encountered problems.

Neither Ms. Coakley nor Lisa H. Schertler, who argued for the federal government, could say. But Ms. Schertler said that court appearances by Drug Enforcement Administration chemists increased by 500 percent after the local courts in the District of Columbia refused to accept analysts’ certificates.

But she ran into sharp questioning from justices who said the law was badly written.

Congress in 1996 sought to strengthen the laws against domestic violence. Before, only persons convicted of violent felonies in such situations lost their rights to own a gun. Going a step further, lawmakers adopted an amendment to take away gun rights for those who had a “misdemeanor crime of domestic violence” on their records.

Sen. Frank R. Lautenberg (D-N.J.), the amendment’s sponsor, said he was closing a loophole. In domestic violence cases, local prosecutors often agree to have defendants plead guilty to a misdemeanor assault or battery, which usually calls for less than a year in jail, he said.

“There is no reason for someone who beats their wives or abuses their children to own a gun. When you combine wife beaters and guns, the end result is more death,” Lautenberg said in the Senate before the amendment was enacted.

But last year, the U.S. 4th Circuit Court of Appeals in Virginia cast doubt on the law’s reach. Its judges decided the federal gun ban did not cover misdemeanor convictions involving assault or battery at home. Instead, it said the federal ban applied only to those convicted under a state’s domestic violence law.

That would make the federal gun law “a dead letter in two-thirds of the states,” according to the government’s lawyer. Saharsky said most states do not have misdemeanor laws specifically targeting domestic violence.

Justice Antonin Scalia was unswayed by that argument. “People are governed by the law that is passed, not by the law that Congress intended to pass,” he said. He and Chief Justice John G. Roberts Jr. said the law as written appeared to apply only to domestic violence measures, not the more common laws against assault and battery.

Scalia wrote the 5-4 opinion in June which held for the first time that the 2nd Amendment protects an individual’s right to have a gun. He said then that the decision did not shield criminals who committed serious crimes with a gun.

But during Monday’s argument, Scalia said possessing a gun was “lawful conduct,” and a wife-beating charge lodged against a West Virginia man was “not that serious an offense.”

The government lawyer shot back that the defendant “hit his wife all around the face until it swelled out, kicked her all around her body, kicked her in the ribs. . . . ”

“Then he should have been charged with a felony,” Scalia interjected, “but he wasn’t.”

The defendant, Randy Hayes, pleaded guilty in 1994 to misdemeanor battery of his then-wife. Ten years later, police responded to a domestic violence call from his home and learned he had owned or sold several guns. He was convicted of illegal gun possession under the 1996 amendment.

The case of U.S. vs. Hayes does not turn on the 2nd Amendment, but instead on how the justices read the words of the 1996 law.

“This statute is a mess,” Justice Anthony M. Kennedy commented at one point.

Roberts noted that California, Illinois, Michigan and Ohio have misdemeanor domestic violence laws. People convicted under those measures would not benefit from a ruling that limited the reach of the federal law, he said.

The Brady Center to Prevent Gun Violence said a ruling for Hayes “could re-arm thousands of convicted domestic violence abusers.” About 14% “of all police officer deaths occur during a response to domestic violence calls,” the group said.

On the other side, the Second Amendment Foundation said the “fundamental right” to own a gun should not be taken away over a misdemeanor.

Four new statutes adopted in the 2008 session of the Ky. General Assembly prohibit prosecutors, sheriff’s, county police officers, KSP officers, and local police officers from requesting or requiring a victim of an alleged sexual offense to submit to a polygraph as a condition for proceeding with the investigation.

The new laws prohibit a victim from being charged or threatened with an offense for failing to submit to a polygraph or other device designed for the purpose of telling the truth.

The loophole in this legislation appears to be that a victim can voluntarily submit to a polygraph test, and a request for the victim to take a polygraph can be made if there is no “condition of proceeding with the investigation or prosecution”.

KRS 70.065 Sheriff, deputy sheriff, constable, and county police officer prohibited from requesting or requiring victim of alleged sexual offense to submit to polygraph or other examination — Other prohibitions.

No sheriff, deputy sheriff, constable, or county police officer shall:(1) As a condition of proceeding with an investigation or prosecution of a case, request or require a victim of an alleged sexual offense to submit to a polygraph examination or any other device designed for the purpose of determining whether a person is telling the truth; or(2) Charge or threaten to charge the victim of an alleged sexual offense with prosecution for a criminal offense for refusing to submit to a polygraph examination or other device designed for the purpose of determining whether a person is telling the truth.Effective: July 15, 2008History: Created 2008 Ky. Acts ch. 112, sec. 3, effective July 15, 2008.

KRS 69.008 Commonwealth’s and county attorneys prohibited from requesting or requiring victim of alleged sexual offense to submit to polygraph or other examination — Other prohibitions. No Commonwealth’s or county attorney shall:(1) As a condition of proceeding with an investigation or prosecution of a case, request or require a victim of an alleged sexual offense to submit to a polygraph examination or any other device designed for the purpose of determining whether a person is telling the truth; or(2) Charge or threaten to charge the victim of an alleged sexual offense with prosecution for a criminal offense for refusing to submit to a polygraph examination or other device designed for the purpose of determining whether a person is telling the truth.Effective: July 15, 2008History: Created 2008 Ky. Acts ch. 112, sec. 2, effective July 15, 2008.Legislative Research Commission Note (7/15/2008). 2008 Ky. Acts ch. 112, sec. 2, provided that this statute be created as a new section of KRS Chapter 65. However, in codification the Reviser of Statutes has created it as a new section of KRS Chapter 69, relating to Commonwealth’s and county attorneys, under the authority of KRS 7.136(a).

KRS 16.062 Prohibition against requesting or requiring victim of alleged sexual offense to submit to polygraph or other examination — Other prohibitions. No officer of the Kentucky State Police shall:(1) As a condition of proceeding with an investigation or prosecution of a case, request or require a victim of an alleged sexual offense to submit to a polygraph examination or any other device designed for the purpose of determining whether a person is telling the truth; or(2) Charge or threaten to charge the victim of an alleged sexual offense with prosecution for a criminal offense for refusing to submit to a polygraph examination or other device designed for the purpose of determining whether a person is telling the truth.Effective: July 15, 2008History: Created 2008 Ky. Acts ch. 112, sec. 1, effective July 15, 2008

KRS 95.021 Police officer prohibited from requesting or requiring victim of alleged sexual offense to submit to polygraph or other examination — Other prohibitions. No police officer shall:(1) As a condition of proceeding with an investigation or prosecution of a case, request or require a victim of an alleged sexual offense to submit to a polygraph examination or any other device designed for the purpose of determining whether a person is telling the truth; or(2) Charge or threaten to charge the victim of an alleged sexual offense with prosecution for a criminal offense for refusing to submit to a polygraph examination or other device designed for the purpose of determining whether a person is telling the truth.Effective: July 15, 2008History: Created 2008 Ky. Acts ch. 112, sec. 4, effective July 15, 2008.

The U.S. Court of Appeals for the Sixth Circuit, Office of the Clerk is accepting applications to fill the position of Senior Motions Attorney. More Information

Public Notice – Reappointment

The current term of Federal Public Defender Raymond Kent is due to expire on February 13, 2009. More Information

Public Notice – Reappointment

The current term of the Office of United States Magistrate Judge Michael R. Merz is due to expire on November 20, 2008. More Information

2008 Court Session Calendar

The United States Court of Appeals for the Sixth Circuit has posted the 2008 Court Session Calendar for the arguments to be held in Cincinnati, Ohio. More Information

Wireless Access

For the benefit of the bar, wireless access to the internet is available in certain locations in the Potter Stewart Courthouse. More Information

Increase in Compensation for CJA CounselThe case compensation limits applicable to counsel appointed under the Criminal Justice Act have been increased from $5,000 to $5,600 for representation in direct criminal appeals, appeals from the denial of habeas corpus or § 2255 relief. The increases apply in cases in which any work was performed on or after October 13, 2008.

The maximum hourly compensation rate for non-capital representation has increased from $94 to $100 for work performed on or after January 1, 2008. The maximum hourly compensation rate for capital federal post-conviction proceedings has increased from $166 to $170 for work performed on or after January 1, 2008.

Retired Judge Stan Billingsley recently participated in a successful felony mediation as a mediator with Retired Judges Mediation & Arbitration Service, a Louisville group made up of retired judges and associates. Retired Judges Mediation service offers their services throughout the state.

Judge Billingsley noted that the mediation process was particularly useful in working out an agreement dealing with restitution being made in lieu of a felony trial.

Billingsley said, “In this mediation the defendant picked up the mediation fee. This allowed the Commonwealth to avoid the problem of their lack of funding for mediation services.” “The prosecutor has the discretion to allow diversion, and this authority can prove very useful in reducing the case load.” “The mediation format provides a forum for prosecutors, victims and defendants to work out their differences and to avoid a public trial.” Not all criminal case mediations result in the diversion of charges, but may result in a reduction of charges. In my recent criminal mediation the parties agreed to a reduction in charges and substantial restitution.”

Kentucky Court of Justice – Judges successfully mediate felony cases for first time in Boyd County

FRANKFORT, Ky. -March 2008- — Boyd County’s 32nd Judicial Circuit recently became the second circuit in Kentucky to use mediation to settle felony cases, with judges successfully resolving eight of 11 cases. The mediation was coordinated through an Administrative Office of the Courts program designed to reduce court caseloads.

Chief Senior Judge William J. Wehr and Senior Judges Charles W. Boteler Jr., Stephen A. Hayden and Steve K. Mershon, who are trained mediators, worked to resolve the cases Thursday, March 13, in conjunction with Circuit Judge Marc I. Rosen, who serves Boyd County. Senior judges are retired judges who continue working for a set amount of time in return for an enhanced retirement benefit but no other pay. They assist sitting judges with congested dockets and fill in when a sitting judge dies or retires, among other duties.

Defendants in the Boyd County felony cases were accused of offenses including assault, receiving stolen property, drug trafficking, criminal abuse, possession of materials portraying a sex performance by a minor, and drug possession. The defendant and prosecution in each case volunteered to participate in mediation.

The senior judges, mediating separately, worked with prosecutors, defense attorneys, defendants, law enforcement and, in some cases, the crime victim, to settle the cases. Judge Wehr, who assisted with the judges’ mediation training and coordinated the mediation day in Boyd County, mediated various cases with the judges.

In the eight settled cases, the defendants pleaded guilty and agreed to meet terms in exchange for lesser sentences than they may have received if convicted at trial. Terms included probation in addition to paying restitution, taking an anger-management course and, in the case of the man charged with possession of matter portraying a sex performance by a minor, registering as a sex offender and completing a two-year sex offender course.

In the case of a defendant charged with two counts of trafficking in a controlled substance, the two sides agreed that he would serve five years concurrently for each count or get probation if he were accepted into a Drug Court program. He could have received up to a 20-year prison sentence if convicted at trial.

A convicted felon signed off in his case mediation to serve two six-year sentences concurrently for trafficking in a controlled substance and avoided a persistent-felony-offender charge. He could have gotten up to 20 years in prison if convicted at trial.

In another case, a defendant charged with two counts of second-degree criminal possession of a forged instrument, a Class D felony, agreed to serve two five-year sentences concurrently and pay restitution. He could have received a sentence of up to 10 years in prison if convicted at trial. He will also serve two years for a previous felony charge after having his prior diversion agreement revoked due to the new charges.

Following mediation, the parties went before Judge Rosen, who took guilty pleas in the cases based on the agreements reached in mediation. The judge, who has the authority to accept or refuse resolutions agreed upon in mediation, accepted the settlements contingent on the outcome of routine pre-sentencing investigations. He may void the agreements based on the investigation results.

Of the three unsettled cases, discussions are ongoing in two of them. A case involving a defendant charged with escaping from a halfway house and being a persistent felony offender was not settled and will be set for trial.

The AOC’s Division of Mediation contacted Judge Rosen about using mediation to resolve some of the felony cases in his circuit. Following the mediations, the judge said he was pleased with how the process worked in the felony cases and would like to use it again in his circuit.

“I think it was an excellent opportunity for defense attorneys and prosecutors to sit down with victims and law enforcement and put together a full picture of the case before agreeing on a reasonable punishment,” Judge Rosen said.

Judge Rosen said he agreed to have the senior judges try mediation in some of his felony cases because he thought it was a chance for all parties involved in a case – attorneys, law enforcement and crime victims – to witness the process of settling a criminal case.

“Plea bargaining has a negative connotation,” he said. “This gave them insight that more goes into bargaining than just picking a number out of the air.”

The cases the judges settled in Boyd County would have each taken six to 12 weeks to resolve, during which time the local jail would have been paying for food and lodging for those defendants incarcerated while awaiting trial, Judge Rosen said.

Mediation is an informal process in which a neutral third party facilitates dispute resolution between two or more parties, and it is commonly used to resolve civil cases. The AOC also has the Court Annexed Mediation Program, or CAMP, in nine counties for mediating misdemeanors and some family law cases. However, prior to Boyd County, only one other Kentucky circuit judge previously used mediation to address felony cases – Chief Circuit Judge Anthony W. Frohlich, who serves Boone and Gallatin counties.

The mediation process is designed to help disputing parties reach an agreement on all or part of the issues in dispute. Decision-making authority remains with the parties, not the mediator. The mediator assists the parties in identifying issues, fostering joint problem solving and exploring settlement alternatives.

With the exception of Judge Wehr, the judges who conducted mediations in Boyd County mediated cases Friday, March 14, for Circuit Judge Oscar Gayle House, making him the third Kentucky judge to use mediation to resolve felony cases. Judge House serves Clay, Jackson and Leslie counties.

The mediations in Clay County resulted in parties reaching settlements in 18 of the 19 cases the judges addressed.

The judges said those involved in the mediations in Boyd and Clay counties deemed the process worthwhile.

Judge Hayden said mediation saves money by resolving cases that could otherwise go on for days in court. The method works, in many cases, because it gives people a chance to have their say, he said.

“Sometimes it’s just giving people the opportunity to voice their concerns,” Judge Hayden said. “A lot of times, people feel like they are not being heard. But in mediation, they feel like, ‘Hey, I’m being listened to.’ ”

Judge Mershon agreed, adding that both sides in a felony case may prefer mediation with a senior judge to a trial because they feel a knowledgeable, retired judge with ostensible authority is weighing in on their case.

Carol Paisley, manager of the AOC’s Division of Mediation, said the division plans to continue working with judges to get felony cases handled through mediation rather than at trial when possible.

“We have a process that works and we have mediators available,” said Paisley, who worked with Judge Wehr to coordinate the mediations in Boyd and Clay counties. “Now it’s just a matter of identifying the next areas to use this program, which likely will be jurisdictions with heavy caseloads and an overcrowded jail nearby. Overcrowded jails pass on significant costs to the counties and this is one tool to help reduce those costs.”

The AOC in Frankfort is the operational arm of the Kentucky Court of Justice and supports the activities of 4,000 court system employees, including the elected offices of justices, judges and circuit court clerks. As the fiscal agent for the state court system, the AOC executes the Judicial Branch budget.

President-elect Obama will enter office with an immediate opportunity to begin shaping the federal courts by filling four dozen openings on trial and appeals courts.

Public attention typically is focused on the Supreme Court, where five justices are older than 70. Speculation about a possible opening centers on 88-year-old Justice John Paul Stevens, but any retirement is unlikely before the summer, if then.

By contrast, 14 seats are open on appeals courts or will be by the end of January. Democratic appointees are a majority on only one of the 13 federal appeals courts, the San Francisco-based 9th U.S. Circuit Court of Appeals.

The traditionally conservative 4th U.S. Circuit Court of Appeals, based in Richmond, Va., is the first court on which Obama can change the balance of power quickly. It has four openings and is divided now between five judges appointed by Republican presidents and five named by Democrat Bill Clinton.

Shapiro estimates that within four years, Obama can name enough judges to give Democrats majorities on nine of the 13 appeals courts.

With Democrats holding a solid majority in the Senate, Obama is not likely to have trouble getting his appointees confirmed. Bush and Clinton both struggled with the Senate when it was under the control of the opposition party for parts of their presidencies.

Vice President-elect Joe Biden, a senator from Delaware who served 32 years on the Senate Judiciary Committee can be expected to have some influence in judicial appointments.

Conservatives tried to make a campaign issue of the potential for Democrats to remake the federal judiciary under Obama after Republican administrations since 1981 installed many young, right-leaning judges.

Even on the Supreme Court, where the justices often divide 5-4 on ideologically charged issues, seven justices were appointed by Republicans.

The court’s two oldest justices, Stevens and Ruth Bader Ginsburg, 75, are considered the most likely to retire soonest, yet both have hired law clerks for the next court term.

John Cheves of Polwatchers reported the progress of the Criminal Justice Council Nov. 8, 2008.The Kentucky Criminal Justice Council appointed by Gov. Steve Beshear has been debating ways to reduce the state’s swollen inmate population in prisons and local jails without endangering public safety.Gov. Steve Beshear expects a report from the council next month so he can propose changes in the penal code to the 2009 General Assembly this winter.The council — which includes Justice Secretary J. Michael Brown and about 16 prosecutors, public defenders, legislators and state officials — plans to meet Nov. 24 to adopt its report. So far, the council’s subcommittees favorably have discussed ideas that include:

Expand parole opportunities for elderly and ailing inmates who no longer pose an obvious threat, but who still have years left to serve;

Expand substance-abuse programs so they’re available at all prisons and every local jail that is contracted to hold state inmates (although panel members note that the state government doesn’t seem to have money available for this right now);

Reclassify possession of small amounts of illegal drugs for personal use as a misdemeanor, rather than a felony, with substance-abuse treatment required upon conviction;

Rewrite the law on drug trafficking within 1,000 yards of a school so that it only applies to people providing drugs to minors, not drug dealers with adult customers who happen to be in the general vicinity of a school campus;

Raise the level of felony theft from $300, where it has been for many years, to $500;

And eliminate the enhanced penalties for second and subsequent convictions of possession of drug paraphernalia.

Some ideas, such as reducing possession of small amounts of marijuana to a criminal violation, punishable by a fine, were offered but discarded, although other states have adopted this. None of the ideas favorably discussed will necessarily be adopted in the final report.While the council met this year, Kentucky already was releasing more inmates than ever, and more liberally.Reacting to inmate overcrowding, the General Assembly last winter ordered faster parole reviews and earlier inmate releases based on various credits. Prosecutors are challenging the early releases in court. But in the meantime, many hundreds have been released under the new rules. For the fiscal year that ended June 30, the Corrections Department released more inmates than it admitted, the first time that has happened in at least a decade, dropping the inmate population under 22,000.

Attorney General Jack Conway announced today that his Election Fraud Hotline received 271 calls from 50 counties between 6 a.m. and 7 p.m. (EST) during the General Election on Tuesday, November 4. This is the most calls ever received on Election Day. The previous record was 182 calls during the General Election in 2006.

The majority of calls on Tuesday came from county officials or voters with procedural questions. The most common complaints concerned election officials, electronic voting machines and electioneering within 300 feet of a polling place. There were four complaints of vote-buying. None of those complaints was substantiated.

The hotline received 60 calls on Election Day during the primary.

“The increase in calls to our hotline reflects the turnout and interest in the national and state races that were on the ballot in Kentucky,” General Conway said. “I appreciate voters and concerned citizens who, even with a near record voter turnout in the Commonwealth, took time to be our eyes and ears in the polling places.”

Investigators with the Office of the Attorney General conducted on-site surveys of polling places in each of Kentucky’s six congressional districts. Agents were able to provide immediate response to any allegations of voting irregularities. Staff did not observe any election violations in the counties they surveyed.

Election Fraud Hotline Calls

125 procedural questions

46 voting machine complaints

33 electioneering complaints

29 election official complaints

17 miscellaneous calls

9 legal questions

8 residency issues

6 voter identification complaints

4 vote buying/selling allegations

4 absentee ballot complaints

4 reports of person voting more than once

3 voter assistance questions

3 media calls

1 disruption at the polls complaint

The number of complaints totals 292; the number of calls totals 271 – some calls contained multiple complaints.

The Office of the Attorney General, Kentucky State Police, the Kentucky Board of Elections, the Kentucky Secretary of State and the U.S. Attorneys from the Western and Eastern Districts of Kentucky are reviewing each complaint and will investigate any that prove to be criminal in nature.